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JUDGMENT
and Haryana High Court upholding the acquittal of the respondents. The
responders were respondents in Criminal Appeal No. 537 DBA of 1997. The
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High Court heard four appeals but we are concerned with the two appeals only
i.e. Criminal appeal no. 537 DBA of 1997 and . Criminal appeal No. 170- DB
of 1997 (Paramjit Singh v. State of Punjab) and disposed the appeals along
with two other appeals. Respondents faced trial along with two others namely
149, 307 read with Section 149, 326/149, 325 read with Section 149 and
323/149 of the Indian Penal Code, 1960 (in short the IPC). Another accused
3. The trial court held that the accusations were not established so far as the
present respondents are concerned but found the two co-accused persons
Mohan Singh and Paramjit Singh guilty of various offences. Criminal Appeal
No. 537 DBA of 1997 was filed by the State questioning acquittal of the
respondents. The connected Criminal appeal No. 587 of 2002 has been filed by
the accused Paramjit Singh who was appellant in Criminal Appeal No. 170 DB
follows:
On 6th September, 1987 at about 6.30 PM Jit Singh and Jaswant Singh
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Swaran Singh and Bakhshish Singh were sitting near the office of the Truck
Union, Khanauri Mandi when accused Mohan Singh armed with a SBBL gun,
Paramjit Singh, Sukhchain Singh and Swaran Singh armed with gandasas and
Harbhajan Singh unarmed came to the spot in Truck No. HYA 6595, being
driven by Harbhajan Singh. After parking the truck at a distance of 6-7 kadams
from the Cabin, the accused got down and raised a lalkara that they would
teach them a lesson for being instrumental in making them lose the elections
held to the various offices of the Truck Union. Mohan Singh accused
thereupon fired two shots at Jit Singh Singh and Ghula singh. Harbhajan
Singh then snatched the gun from Mohan Singh and fired one shot hitting
Jaswant Singh on his arm and back. Swaran Singh, Paramjit Singh and
Sukhchain Singh accused also caused injuries to Swaran Singh, Nishan Singh
and Ghula Singh. All the accused thereafter re-boarded the truck and escaped
from the spot. Jit Singh and Jaswant Singh died almost immediately
whereas Ghula Singh, who was in a serious condition, was taken to the
Hospital by some persons who had come to the spot whereas Nishan Singh and
Swaran Singh left for Police Post, Khanauri. Along the way, however, they
Singh made his statement to him at 8.00 P.M. and on its basis, the formal F.I.R
was registered at Police Station, Moonak, 25 kms away at 9.30 P.M.; with the
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special report being delivered to the Iliaqa Magistrate at Sunam at 2.30 AM on
September 7,1987. ASI Shamsher Singh (P.W.12) also went to the place of
occurrence and made the necessary inquiries and amongst other articles picked
up three spent cartridges cases of .12 bore. The accused were arrested on
12.9.1987 and Truck No. HYA-6595 belonging to Harbhajan Singh was taken
into possession. Mohan Singh accused also produced his .12 bore gun and two
live cartridges. The spent cartridges and the gun belonging to Mohan Singh
accused were sent to the Forensic Science Laboratory and the Laboratory in its
report (Exh.PRR) opined that the said cartridges had been fired from the gun in
question. On the completion of the investigation, the accused were charged for
offences punishable under section 302 and other offences of IPC as noted
above and the Arms Act, 1959 (in short the Arms Act) and as they pleaded
convicted, that the FIR was lodged belatedly and on that basis the prosecution
version was vulnerable. There was no motive for five of the accused persons to
come to the spot fully armed and cause the death of two persons and injuries to
three persons. The State questioned correctness of acquittal on the ground that
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the conclusions of the trial court were erroneous, the acquitted persons
conclusions.
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FIR. , it had chosen to acquit Swaran Singh and Sukhchain Singh
accused. We have also considered Mr. Narulas argument with
regard to the culpability of Paramjit Singh. As per the evidence of
Nishan Singh(P.W.-7), accused Paramjit Singh, who was armed
with a Gandasa, had given a blow hitting Swaran Singh on his left
arm. It is true that Swaran Singh has not been examined as a
witness but from the eye witness account as also the statement of
Dr. Gurcharan Singh (P.W.-5), it is clear that there was one incised
wound measuring 3.5cm x 1 cm and one contusion 2 cm wide on
the lateral aspect of the abdominal wall on his person Dr.
H.L.Garg (DW 2), had also X/rayed the injuries of Swaran Singh
but no bone injury had been detected. We find that the injuries
suffered by Swaran Singh have been reflected in the medical
report. We therefore find that the involvement of Paramjit Singh
clearly stands established.
6. Learned counsel for the State submitted that the trial court and the High
Court clearly lost sight of the relevant facts and therefore the judgment is
vulnerable.
7. In Criminal Appeal No. 587 of 2002, learned counsel for the accused
Paramjit Singh submitted that when co-accused have been acquitted there is no
reason for the high Court to uphold the conviction so far as Paramjit Singh is
concerned.
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8. In response learned counsel for the respondents-State submitted that the
expressly declares that no appeal shall lie from any judgment or order of a
criminal court except as provided by the Code or by any other law for the time
being in force. Section 373 provides for filing of appeals in certain cases.
Section 374 allows appeals from convictions. Section 375 bars appeals in cases
cases (Section 376). Section 377 permits appeals by the State for enhancement
of sentence. Section 378 confers power on the State to present an appeal to the
High Court from an order of acquittal. The said section is material and may be
quoted in extenso:
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Establishment constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other agency
empowered to make investigation into an offence under any
Central Act other than this Code, the Central Government may
also direct the Public Prosecutor to present an appeal, subject
to the provisions of sub-section (3), to the High Court from the
order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2) shall be
entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted
upon complaint and the High Court, on an application made to
it by the complainant in this behalf, grants special leave to
appeal from the order of acquittal, the complainant may present
such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special
leave to appeal from an order of acquittal shall be entertained
by the High Court after the expiry of six months, where the
complainant is a public servant, and sixty days in every other
case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the
grant of special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall lie under
sub-section (1) or under sub-section (2).
10. It may be stated that more or less similar provisions were found in the
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Committee of the Privy Council as also before this Court. Since in the present
appeal, we have been called upon to decide the ambit and scope of the power of
11. Bare reading of Section 378 of the Code (appeal in case of acquittal)
quoted above, makes it clear that no restrictions have been imposed by the
legislature on the powers of the appellate court in dealing with appeals against
acquittal. When such an appeal is filed, the High Court has full power to
reappreciate, review and reconsider the evidence at large, the material on which
the order of acquittal is founded and to reach its own conclusions on such
evidence. Both questions of fact and of law are open to determination by the
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the presumption of his innocence is certainly not weakened but reinforced,
13. Though the above principles are well established, a different note was
struck in several decisions by various High Courts and even by this Court. It is,
point.
14. The first important decision was rendered by the Judicial Committee of
Swarup the accused were acquitted by the trial court and the local Government
directed the Public Prosecutor to present an appeal to the High Court from an
order of acquittal under Section 417 of the old Code (similar to Section 378 of
the Code). At the time of hearing of appeal before the High Court, it was
it was not open to the appellate court to interfere with the findings of fact
recorded by the trial Judge unless such findings could not have been reached by
him had there not been some perversity or incompetence on his part. The High
Court, however, declined to accept the said view. It held that no condition was
imposed on the High Court in such appeal. It accordingly reviewed all the
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evidence in the case and having formed an opinion of its weight and reliability
petition was presented to His Majesty in Council for leave to appeal on the
ground that conflicting views had been expressed by the High Courts in
different parts of India upon the question whether in an appeal from an order of
acquittal, an appellate court had the power to interfere with the findings of fact
recorded by the trial Judge. Their Lordships thought it fit to clarify the legal
position and accordingly upon the humble advice of their Lordships, leave
was granted by His Majesty. The case was, thereafter, argued. The Committee
considered the scheme and interpreting Section 417 of the Code (old Code)
The Code also made no distinction as regards powers of the High Court in
Though several authorities were cited revealing different views by the High
Courts dealing with an appeal from an order of acquittal, the Committee did not
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There is, in their opinion, no foundation for the view,
apparently supported by the judgments of some courts in India,
that the High Court has no power or jurisdiction to reverse an
order of acquittal on a matter of fact, except in cases in which
the lower court has obstinately blundered, or has through
incompetence, stupidity or perversity reached such distorted
conclusions as to produce a positive miscarriage of justice, or
has in some other way so conducted or misconducted itself as
to produce a glaring miscarriage of justice, or has been tricked
by the defence so as to produce a similar result.
Sections 417, 418 and 423 of the Code give to the High Court
full power to review at large the evidence upon which the order
of acquittal was founded, and to reach the conclusion that upon
that evidence the order of acquittal should be reversed. No
limitation should be placed upon that power, unless it be found
expressly stated in the Code.
17. The Committee, however, cautioned appellate courts and stated: (IA
p.404)
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appellate court in disturbing a finding of fact arrived at by a
judge who had the advantage of seeing the witnesses. To state
this, however, is only to say that the High Court in its conduct
of the appeal should and will act in accordance with rules and
principles well known and recognised in the administration of
justice.
(emphasis supplied)
18. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the Committee reiterated
the above view in Sheo Swarup (Supra) and held that in an appeal against
acquittal, the High Court has full powers to review and to reverse acquittal.
19. So far as this Court is concerned, probably the first decision on the point
was Prandas v. State (AIR 1954 SC 36) (though the case was decided on 14-3-
1950, it was reported only in 1954). In that case, the accused was acquitted by
the trial court. The Provincial Government preferred an appeal which was
allowed and the accused was convicted for offences punishable under Sections
302 and 323 IPC. The High Court, for convicting the accused, placed reliance
on certain eyewitnesses.
20. Upholding the decision of the High Court and following the proposition
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6. It must be observed at the very outset that we cannot
support the view which has been expressed in several cases
that the High Court has no power under Section 417, Criminal
Procedure Code, to reverse a judgment of acquittal, unless the
judgment is perverse or the subordinate court has in some way
or other misdirected itself so as to produce a miscarriage of
justice.
(emphasis supplied)
21. In Surajpal Singh v. State (1952 SCR 193), a two-Judge Bench observed
that it was well established that in an appeal under Section 417 of the (old)
Code, the High Court had full power to review the evidence upon which the
order of acquittal was founded. But it was equally well settled that the
by the trial court, and the findings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence could be reversed only for very
22. In Ajmer Singh v. State of Punjab (1953 SCR 418) the accused was
acquitted by the trial court but was convicted by the High Court in an appeal
against acquittal filed by the State. The aggrieved accused approached this
Court. It was contended by him that there were no compelling reasons for
setting aside the order of acquittal and due and proper weight had not been
given by the High Court to the opinion of the trial court as regards the
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credibility of witnesses seen and examined. It was also commented that the
High Court committed an error of law in observing that when a strong prima
facie case is made out against an accused person it is his duty to explain the
behind the presumption of innocence and cannot state that the law entitles him
(emphasis supplied)
24. In Atley v. State of U.P. (AIR 1955 SC 807) this Court said:
It has been laid down by this Court that it is open to the High
Court on an appeal against an order of acquittal to review the
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entire evidence and to come to its own conclusion, of course,
keeping in view the well-established rule that the presumption
of innocence of the accused is not weakened but strengthened
by the judgment of acquittal passed by the trial court which had
the advantage of observing the demeanour of witnesses whose
evidence have been recorded in its presence.
25. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285) the
accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by
the trial court but convicted by the High Court. Dealing with the power of the
High Court against an order of acquittal, Bose, J. speaking for the majority
(2:1) stated: (AIR p. 220, para 1) It is, in our opinion, well settled that it is not
enough for the High Court to take a different view of the evidence; there must
also be substantial and compelling reasons for holding that the trial court was
wrong.
(emphasis supplied)
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26. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120, a three-Judge
Bench considered almost all leading decisions on the point and observed that
there was no difficulty in applying the principles laid down by the Privy
Council and accepted by the Supreme Court. The Court, however, noted that
This Court obviously did not and could not add a condition to
Section 417 of the Criminal Procedure Code. The words were
intended to convey the idea that an appellate court not only
shall bear in mind the principles laid down by the Privy
Council but also must give its clear reasons for coming to the
conclusion that the order of acquittal was wrong.
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bearing on the questions of fact and the reasons given by the
court below in support of its order of acquittal in its arriving at
a conclusion on those facts, but should also express those
reasons in its judgment, which lead it to hold that the acquittal
was not justified.
27. Again, in M.G. Agarwal v. State of Maharashtra (1963) 2 SCR 405, the
point was raised before a Constitution Bench of this Court. Taking note of
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that he has been acquitted at his trial. Therefore, the test
suggested by the expression substantial and compelling
reasons should not be construed as a formula which has to be
rigidly applied in every case. That is the effect of the recent
decisions of this Court, for instance, in Sanwat Singh v. State
of Rajasthan and Harbans Singh v. State of Punjab (1962 Supp
1 SCR 104) and so, it is not necessary that before reversing a
judgment of acquittal, the High Court must necessarily
characterise the findings recorded therein as perverse.
(emphasis supplied)
Maharashtra (1973 (2) SCC 793) this Court held that in India, there is no
fetters on the plenary power of the appellate court to review the whole evidence
thought that the rebuttable innocence attributed to the accused having been
liberty constrains the higher court not to upset the holding without very
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6. Even at this stage we may remind ourselves of a necessary
social perspective in criminal cases which suffers from
insufficient forensic appreciation. The dangers of exaggerated
devotion to the rule of benefit of doubt at the expense of social
defence and to the soothing sentiment that all acquittals are
always good regardless of justice to the victim and the
community, demand especial emphasis in the contemporary
context of escalating crime and escape. The judicial instrument
has a public accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs thro the
web of our law should not be stretched morbidly to embrace
every hunch, hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a thousand guilty men
may go but one innocent martyr shall not suffer is a false
dilemma. Only reasonable doubts belong to the accused.
Otherwise any practical system of justice will then breakdown
and lose credibility with the community. The evil of acquitting
a guilty person light-heartedly, as a learned author (Glanville
Williams in Proof of Guilt) has saliently observed, goes much
beyond the simple fact that just one guilty person has gone
unpunished. If unmerited acquittals become general, they tend
to lead to a cynical disregard of the law, and this in turn leads
to a public demand for harsher legal presumptions against
indicted persons and more severe punishment of those who
are found guilty. Thus, too frequent acquittals of the guilty may
lead to a ferocious penal law, eventually eroding the judicial
protection of the guiltless. For all these reasons it is true to say,
with Viscount Simon, that a miscarriage of justice may arise
from the acquittal of the guilty no less than from the conviction
of the innocent.... In short, our jurisprudential enthusiasm for
presumed innocence must be moderated by the pragmatic need
to make criminal justice potent and realistic. A balance has to
be struck between chasing chance possibilities as good enough
to set the delinquent free and chopping the logic of
preponderant probability to punish marginal innocents.
(emphasis supplied)
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30. In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the Court was
considering the power of the High Court against an order of acquittal under
Section 378 of the Code. After considering the relevant decisions on the point
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evidence on record, the appellate court should not disturb the
finding of the trial court. This, of course, is not a new
principle. It stems out of the fundamental principle of our
criminal jurisprudence that the accused is entitled to the benefit
of any reasonable doubt. If two reasonably probable and evenly
balanced views of the evidence are possible, one must
necessarily concede the existence of a reasonable doubt. But,
fanciful and remote possibilities must be left out of account. To
entitle an accused person to the benefit of a doubt arising from
the possibility of a duality of views, the possible view in favour
of the accused must be as nearly reasonably probable as that
against him. If the preponderance of probability is all one way,
a bare possibility of another view will not entitle the accused to
claim the benefit of any doubt. It is, therefore, essential that
any view of the evidence in favour of the accused must be
reasonable even as any doubt, the benefit of which an accused
person may claim, must be reasonable.
(emphasis supplied)
31. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, this
Court said:
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32. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57, referring
33. In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, the trial court
acquitted the accused but the High Court convicted them. Negativing the
contention of the appellants that the High Court could not have disturbed the
findings of fact of the trial court even if that view was not correct, this Court
observed:
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order of acquittal is that the Court has full powers to review the
evidence upon which an order of acquittal is based and
generally it will not interfere with the order of acquittal
because by passing an order of acquittal the presumption of
innocence in favour of the accused is reinforced. The golden
thread which runs through the web of administration of justice
in criminal case is that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view which is
favourable to the accused should be adopted. Such is not a
jurisdiction limitation on the appellate court but judge-made
guidelines for circumspection. The paramount consideration of
the court is to ensure that miscarriage of justice is avoided. A
miscarriage of justice which may arise from the acquittal of the
guilty is no less than from the conviction of an innocent. In a
case where the trial court has taken a view ignoring the
admissible evidence, a duty is cast upon the High Court to
reappreciate the evidence in acquittal appeal for the purposes
of ascertaining as to whether all or any of the accused has
committed any offence or not.
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reversing an order of acquittal to examine and discuss the
reasons given by the trial court to acquit the accused and then
to dispel those reasons. If the High Court fails to make such
an exercise the judgment will suffer from serious infirmity.
35. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court
observed:
36. Again in Kallu v. State of M.P. (2006) 10 SCC 313, this Court stated:
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interfered with, by an appellate court, where the judgment of
the trial court is based on evidence and the view taken is
reasonable and plausible. It will not reverse the decision of the
trial court merely because a different view is possible. The
appellate court will also bear in mind that there is a
presumption of innocence in favour of the accused and the
accused is entitled to get the benefit of any doubt. Further if it
decides to interfere, it should assign reasons for differing with
the decision of the trial court.
(emphasis supplied)
Karnataka (2007 (4) SCC 415), the following general principles regarding
powers of the appellate court while dealing with an appeal against an order of
the evidence before it may reach its own conclusion, both on questions of
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extensive powers of an appellate court in an appeal against acquittal. Such
than to curtail the power of the court to review the evidence and to come to
Secondly, the accused having secured his acquittal, the presumption of his
court.
evidence on record, the appellate court should not disturb the finding of
reasonable doubt. Though this standard is a higher standard, there is, however,
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no absolute standard. What degree of probability amounts to proof is an
and the confirmation of one piece of evidence by another, a learned author says
[see The Mathematics of Proof II: Glanville Williams, Criminal Law Review,
39. Doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favourite other than truth. To
Doubts must be actual and substantial doubts as to the guilt of the accused
persons arising from the evidence, or from the lack of it, as opposed to mere
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merely possible doubt, but a fair doubt based upon reason and common sense.
40. The concepts of probability, and the degrees of it, cannot obviously be
robust common sense and, ultimately, on the trained intuitions of the Judge.
While the protection given by the criminal process to the accused persons is not
41. The above position was highlighted in State of U.P. v. Awdhesh (2008
(9) JT 591).
42. Therefore on considering the reasonings recorded by the trial court and
High Court we find no scope for interference with the order of acquittal passed
29
43. Coming to the appeal filed by the accused Paramjit Singh, we find that
the High Court has indicated the reasons as to why he stood on a different
concerned.
J.
(Dr. ARIJIT PASAYAT)
J.
(C.K. THAKKER)
J.
(LOKESHWAR SINGH PANTA)
New Delhi:
November 7, 2008
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